Qadar v. United States of America

Filing 28

OPINION & ORDER: Petitioner's 1 motion to vacate his conviction and sentence under 28 U.S.C. § 2255 is denied as time-barred. Furthermore, because Petitioner has not made a "substantial showing of the denial of a constituti onal right" pursuant to 29 U.S.C. § 2253(c)(3), no Certificate of Appealability will issue. Petitioner may seek such a certificate from the Second Circuit Court of Appeals. The Clerk of Court is directed to enter judgment accordingly. SO ORDERED by Judge Allyne R. Ross, on 7/23/2014. C/mailed by Chambers to pro se Petitioner. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

x
MANZOOR QADAR,

13-CV-2967 (ARR)

Petitioner,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-againstOPINION & ORDER
UNITED STATES OF AMERICA,
Respondent.

x
ROSS, United States District Judge:
Petitioner Manzoor Qadar, proceeding prose, moves to vacate his conviction pursuant to
28 U.S.C. § 2255. Petitioner raises several ineffective-assistance-of-counsel claims and,
primarily in a supplemental filing, argues that he is actually innocent of the crimes of which he
was convicted before this court. For the reasons set forth below, I find that Qadar's petition is
untimely and that petitioner has failed to set forth grounds to overcome this bar. Accordingly,
the petition is denied.

BACKGROUND
I.

Petitioner's Trial and Conviction
On April 17, 2002, ajury found petitioner guilty of murder-for-hire and conspiracy to

commit murder-for-hire, in violation of 18 U.S.C. § 1958, and using a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c). 1 Petitioner's conviction
related to the November 1996 murder of Shaukat Parvez ("Shaukat"), a Pakistani immigrant who
1
Unless otherwise noted, the facts in this section and the following sections are taken from this court's order dated
May 7, 2003, denying petitioner's Rule 33 motion in his underlying criminal case. See United States v. Quadar, No.
OO-CR-603 (ARR), DE #88.

was shot near his home in Queens, New York. At trial, the government established that
petitioner had conspired with others, including Omar Malik, to commit the murder.
The murder victim, Shaukat, had secretly married Rubina Malik Parvez ("Rubina"), the
daughter of an influential Pakistani businessman named Malik Rahmet Khan ("Rahmet"), against
her father's wishes. Rahmet had arranged for Rubina to marry another man, Khurram Khan
("Khan"). After her secret marriage to Shaukat, Rubina was forced to marry Khan, to whom she
at some point disclosed her secret marriage to Shaukat. Shaukat was, by that point, living in the
United States. Eventually, Rubina and Khan both fled to the United States, where Rubina
reunited with Shaukat and settled in Queens.
After Rahmet learned of Rubina's marriage to Shaukat, he began conspiring with his son
Omar Malik ("Omar"), who was also living in the United States at the time, to kill Shaukat,
Rubina, and Khan. Another of Rahmet's sons, Malik Qamar Islam ("Qamar") overheard
telephone conversations between his father and Omar, including one in which they discussed
paying someone $60,000 to commit the murder. Rahmet instructed Qamar to kill several of
Shaukat's family members living in Pakistan, but Qamar did not do so and instead warned his
sister by phone of the danger to her and Shaukat.
On September 16, 1996, Omar went to Shaukat's and Rubina's home late at night and
tried to speak with them, but they refused to see him. Omar also called them by phone that night,
but Shaukat told Omar that they did not want to speak to him. Two days later, Shaukat and
Rubina filed a complaint against Omar with the New York City Police Department, in which
they alleged that Omar had threatened to kill Shaukat because of his relationship with Rubina.

2

On November 15, 1996, petitioner flew from Manchester, England, to New York using a
ticket that he had purchased in cash the day before for twice his weekly salary. In New York,
Omar introduced petitioner to Abdul Qazi and asked to borrow Qazi's car because, Omar told
Qazi, Shaukat had seen Omar and petitioner in Omar's own car, a white Ford Taurus station
wagon. The next day, Omar told Qazi that he and petitioner had found Shaukat and that "they"
were going to "teach him a lesson," which Qazi understood to mean that "something bad" would
happen to Shaukat.
Shaukat was shot and killed on November 22, 1996. Two eyewitnesses observed a white
van or station wagon chase him around a comer while a gunman fired at him from the passenger
side of the vehicle. After the murder, Omar and petitioner drove through the night to northern
Virginia, where petitioner caught a flight from Dulles International Airport back to England.
Omar fled to Canada with the help of a cousin and was eventually arrested on charges related to
this case after his return to Pakistan. However, he subsequently absconded.
Qamar testified at trial that, at some point after the murder, Omar told him over the phone
that he had "killed Shaukat in America." According to Rubina's trial testimony, Omar told her
that he did not kill Shaukat but that Rahmet had paid someone else to do it. At trial, the
government also introduced a tape-recorded conversation in which petitioner instructed his wife
about what to do with a sum of money that he had obtained in November 1996 and did not want
others to know about.
Another witness at petitioner's trial testified that petitioner had once mediated a dispute
involving a daughter who had run away with a non-Muslim against her family's wishes. In
summation, petitioner's trial counsel highlighted this prior incident and suggested that Qadar had

3

come to New York in 1996 to perform a similar role in mediating between Rubina and her
family.

II.

Petitioner's Rule 33 Motion
At trial, petitioner was represented by retained counsel Alexei M. Schacht, Esq.

Following trial, at petitioner's request, Schacht was replaced by new retained counsel, Uzmah
Saghir. Saghir represented Qadar in requesting a new trial, as well as at his sentencing and on
direct appeal.
On March 28, 2003, prior to sentencing, petitioner filed a motion, through counsel, for a
new trial pursuant to Rule 33 of the Federal Rules of Civil Procedure. In his motion, plaintiff
argued that newly-discovered evidence confirmed the theory, offered by counsel at trial, that he
had traveled to New York to mediate the family dispute and was completely innocent of
Shaukat's murder. The newly-discovered evidence submitted by Qadar in connection with that
motion, which is the same evidence that he principally relies on in his instant § 2255 petition,
consisted of the declarations ofNishat Bashir ("Nishat'') and Raqia Bashir ("Raqia"), both of
whom were located in the United Kingdom and, in their declarations, expressed their willingness
to testify on Qadar's behalf in the future.
Nishat, who married Omar in 1998, claimed that on several occasions she had heard
Rahmet praise Omar for having killed Shaukat in defense of the family's honor. She also
claimed that, after their marriage, Omar told her that he believed Shaukat was armed when he
encountered him and that he had shot Shaukat because he thought Shaukat had made a move for
his weapon. Nishat also declared that Omar told her that he had asked Qadar to accompany him
as a mediator when he visited Shaukat., as Qadar and Shaukat were first cousins with a good

4

relationship, and that Qadar had no idea that he would shoot Shaukat. Nishat claimed that she
did not come forward with this information sooner because Omar had directed her never to
repeat it to anyone.
Raqia, Rahmet's sister, declared that she visited Omar in 1999 and that he told her a
version of events similar to what he purportedly told Nishat. She claimed that Omar told her that
petitioner never entered into an agreement to kill Shaukat and that petitioner played no role in the
killing except being present. She also stated that Omar had told her that no payment was ever
made to petitioner for his efforts to mediate for the family. She asserted that she had not
previously come forward with this information because Rahmet threatened to kill her if she told
federal investigators.
This court denied petitioner's Rule 33 motion primarily on the basis that the portions of
the new evidence purporting to exonerate petitioner were inadmissible hearsay not subject to an
exception under the Federal Rules of Evidence. Specifically, Omar's out-of-court statements
regarding petitioner's participation in, and knowledge of, the murder were not against Omar's
penal interest and were not corroborated for trustworthiness---in fact, they contradicted the
identical accounts of two eyewitnesses who testified about the circumstances of the shooting.

III.

Sentencing and Motion for Reconsideration

On June 10, 2003, this court sentenced petitioner to two concurrent terms of life
imprisonment for his murder for hire and murder-for-hire conspiracy convictions and a
consecutive five-year term of imprisonment for his firearm conviction. Tr. of Sentencing, United
States v. Quadar, No. OO-CR-603 (ARR), DE #91, at 11, 13. Immediately prior to sentencing,
this court addressed petitioner's motion, which had been filed the day before, requesting

5

reconsideration of the Rule 33 motion on the basis of two additional declarations from Gulzamir
Ahmed, apparently a family friend, and Malik Camron Nasir, 2 petitioner's relative, claiming that
petitioner was not involved in the murder. 3
In his declaration, which is the only one of these two now attached to Qadar's instant
petition, Gulzamir Ahmed stated that, on a visit to Pakistan in 1999, Rahmet had told Gulzamir
Ahmed that it had been Rahmet's intention to use petitioner as bait to lure Shaukat out for Omar
to kill him. DE #19-1,

iii! 15,

17. According to Gulzamir Ahmed, "[Rahmet] said he had spoken

to [petitioner] a few times on the telephone trying to get him to go to New York so that Omar can
get a clear shot at [Shaukat]." Id. if 16. Gulzamir Ahmed also stated that Rahmet had told him
that he had asked petitioner to go to New York to help him handle the situation and that
petitioner did not know that Omar was going to kill Shaukat until it happened. Id. if 17.
Gulzamir Ahmed, who was also located in the United Kingdom but expressed his willingness to
testify, stated that he had not previously come forward because he "had faith in the Legal System
of a county [sic] like the USA." Id.

if 18.

Although petitioner has not submitted Nasir's declaration in connection with his petition,
the transcript of petitioner's sentencing describes some of its content. Nasir apparently stated
that petitioner was at some point held hostage in Pakistan by the Malik family for four months
and that she had heard that Rahmet had told petitioner that he would pay for his plane ticket to
the United States, which directly contradicted the statement in Raqia's affidavit. Tr. 5.

2
Documents from petitioner's underlying criminal case refer to her as Malik Camron Nasir, but petitioner's papers
refer to her as Malik Camron Neyes. For simplicity, the court will use Nasir.
3
Petitioner also relies on this evidence in his instant petition. However, he has only attached the declaration of
Gulzamir Ahmed to the petition. Although he cites the declaration of Malik Camron Nasir (or Neyes) in his
"Supplemental/Amended Motion," DE #19, at 19, he has not attached it to the petition.

6

This court denied petitioner's request for reconsideration of his Rule 33 motion for
substantially the same reasons as stated in the initial order denying the motion, and principally on
the grounds that the purportedly exculpatory statements were composed entirely of inadmissible
hearsay. Tr. 8-9. The court also noted that "the first set of affidavits [submitted with the Rule 33
motion] ... was basically inconsistent with the second set of affidavits," id. at 7, and that they
were "inherently incredible," id. at 9.
IV.

Direct Appeal
Plaintiff appealed his conviction and sentence arguing, through counsel, that (1) there

was insufficient evidence to convict him; (2) his sentence exceed the statutory maximum; and (3)
his sentence violated the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). On March
16, 2007, the Second Circuit summarily affirmed petitioner's conviction and sentence and
rejected each of his arguments. United States v. Quadar, 223 F. App'x 22 (2d Cir. 2007). The
Supreme Court denied Qadar's petition for certiorari on October 1, 2007. Qadar v. United
States, 552 U.S. 870 (2007).

V.

The Instant Petition
On May 7, 2013, acting prose, petitioner filed a "writ of error audita querrla [sic]"

pursuant to the All Writs Act, 28 U.S.C. § 1651, which Qadar explicitly indicated was not
intended to serve as a§ 2255 petition. DE #1. This court denied that petition for on June 5,
2013, and gave petitioner 30 days to file a petition pursuant to§ 2255. DE #5. Because
petitioner had not submitted a§ 2255 petition with the 30-day period, judgment was entered
dismissing his case on July 8, 2013. DE #7. On August 7, 2013, petitioner filed a motion

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seeking reconsideration and additional time to file his § 2255 petition, DE #8, which the court
granted, DE #9.
On September 30, 2013, the court received Qadar's § 2255 petition. 4 DE #10 ("Initial
Petition). In his Initial Petition, Qadar argued that his trial counsel was ineffective for (1)
advising him to proceed to trial rather than plead guilty; (2) failing to relay to petitioner a 24month plea offer; and (3) advising petitioner to appear before the jury in full beard and Islamic
attire at a time that was only a few months after the 9/11 terrorist attacks in New York City.
Qadar contended that "ineffective counsel while being presumed innocent makes petitioner still
actually innocent." Id. at ECF 15.
Qadar subsequently moved to "amend/correct/supplement" his petition, DE #12, and his
"Amended/Supplemental" petition was filed on February 14, 2014, DE #19 ("Amended
Petition"). In his Amended Petition, Qadar principally argued that he was actually innocent
based on the insufficiency of the evidence at trial and on the "new evidence," i.e., the four
declarations that were submitted in connection with his Rule 33 and reconsideration motions.
Petitioner also argued that his trial counsel's failure to investigate or call these new potential
witnesses who provided the affidavits constituted ineffective assistance of counsel. In support
of his arguments, he attached as exhibits the earlier declarations from Nishat, Raqia, and
Gulzamir Ahmed. He argued that, although filed after the expiration of the one-year statute of
limitations, his petition should not be treated as time-barred because the new evidence
demonstrates his actual innocence.

4

Qadar's petition was attached to a letter from a correctional counselor at the facility where petitioner was
incarcerated indicating that petitioner had tried to mail the petition on August 28, 2013, but it had been returned as
undeliverable.

8

DISCUSSION
I.

Statute of Limitations

A federal habeas petition is subject to a one-year statute of limitations, which begins to
run on "the date on which the judgment of conviction becomes final." 5 28 U.S.C. § 2255(f).
"[A] prisoner's conviction becomes final ... when the United States Supreme Court denies the
prisoner's petition for a writ of certiorari." Green v. United States, 260 F.3d 78, 84 (2d Cir.
2001); accord Clay v. United States, 537 U.S. 522, 527 (2003).
The Supreme Court denied Qadar's petition for certiorari on October 1, 2007. Even the
earliest conceivable date on which Qadar might be considered to have filed his§ 2255 petition,
the date on which he filed his petition for a writ of audita querela, was not until well over five
years later. Accordingly, in the absence of circumstances warranting tolling or some other
exception to the one-year limitations period, the petition must be dismissed as untimely.

II.

Equitable Tolling
Only "rare and exceptional circumstances warrant equitably tolling the limitations

period" for a§ 2255 petition. Green, 260 F.3d at 82-83 (internal quotation mark omitted). A
habeas petitioner is "entitled to equitable tolling only ifhe shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
5

The statute of limitations will also run from, iflater, "(2) the date on which the impediment for making a motion
created by governmental action in violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted
was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(t). There is
no basis for grounds (2) or (3) to apply here. To the extent that plaintiff brings his petition based on the "new
evidence" of the affidavits, those facts were available to petitioner at the latest by the time of his sentencing when
they were provided to the court. Accordingly, ground (4) is of no help to petitioner, as his conviction did not
become final until after the date on which he was aware of the evidence underlying his petition.

9

prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted).
In this instance, petitioner has not alleged any facts that would create a basis for equitable
tolling. He has not shown that he has been "pursuing his rights diligently," or even at all, since
the date that the Supreme Court denied certiorari. Nor has he demonstrated the existence of any
extraordinary circumstances that prevented him from timely filing. Consequently, Qadar cannot
benefit from equitable tolling of the limitations period for his petition.

III.

Actual Innocence

In his Amended Petition, Qadar asserts that he is actually innocent of the crimes of which
he was convicted. Consequently, he argues that, pursuant to the Supreme Court's decision in
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), his petition should not be barred as untimely.
Although a showing of "actual innocence" may open a "gateway" to consideration of an
otherwise time-barred habeas petition, id. at 1928, petitioner has not met the "demanding"
standard for such a showing in this case, House v. Bell, 547 U.S. 518, 538 (2006).
In McQuiggin, the Supreme Court recognized that the actual innocence gateway to
federal habeas review developed in Schlup v. Delo, 513 U.S. 298 (1995), and House, 547 U.S.
518, extends to cases where the petition would otherwise be barred by the expiration of the oneyear statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act of
1998 ("AEDPA"). 6 This "miscarriage of justice" exception applies only to cases "where a
6

The Second Circuit had previously reached the same conclusion in Rivas v. Fischer, 687 F.3d 514, 540, 548 (2d
Cir. 2012). McQuiggin and Rivas considered the statute oflimitations in 28 U.S.C. § 224l(d)(l), which applies to
habeas petitions filed by state prisoners. Because the limitations language of28 U.S.C. § 2255(f) is nearly identical
and the reasoning of those cases is equally applicable in this context, the court assumes that the actual innocence
exception would be available to a § 2255 petitioner who satisfies its stringent standard. Cf. Bousley v. United
States, 523 U.S. 614, 623 (1998) (holding that a§ 2255 petitioner who has procedurally defaulted a claim by failing

10

constitutional violation has probably resulted in the conviction of one who is actually innocent."
Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012) (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)). In McOuiggin, the Supreme Court cautioned that "tenable actual-innocence gateway
pleas are rare." 133 S. Ct. at 1928. "The gateway should open only when a petition presents
'evidence of innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional error."' Id.
at 1936 (quoting Schlup, 513 U.S. at 316).

To meet this stringent standard, a petitioner's claim of actual innocence "must be both
'credible' and 'compelling."' Rivas, 687 F.3d at 541 (quoting House, 547 U.S. at 521, 538).
"For the claim to be 'credible,' it must be supported by new reliable evidence - whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial." Id. (internal quotation marks and citation omitted). "For the
claim to be 'compelling,' the petitioner must demonstrate that 'more likely than not, in light of
the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt---or to
remove the double negative, that more likely than not any reasonable juror would have
reasonable doubt."' Id. (quoting House, 547 U.S. at 538). A petitioner must at least "introduce
credible new evidence that thoroughly undermines the evidence supporting the jury's verdict."
Id. at 543.
In applying this standard, courts must "consider all the evidence, old and new,
incriminating and exculpatory" and "make a probabilistic determination about what reasonable,
properly instructed jurors would do." House, 547 U.S. at 538 (internal quotation marks omitted).

to raise it on direct review may raise that claim in his habeas petition if he can first demonstrate that he is "actually
innocent").

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"If new evidence so requires, this may include consideration of the credibility of the witnesses

presented at trial." Id. at 538-39 (internal quotation marks omitted). A court may also consider
"[u]nexplained delay in presenting new evidence" as a factor in making its determination.
McQuiggin, 133 S. Ct. at 1935.

Here, having reviewed the record as a whole, including the declarations resubmitted by
petitioner, the court finds petitioner's actual innocence claim neither credible nor compelling.
Foremost, the "new" evidence relied on by Qadar is not the kind of "new reliable evidence"
required to make a viable showing of credibility. As discussed in this court's prior rulings
related to petitioner's Rule 33 motion, the exculpatory portions of the "new" declarations consist
of hearsay statements lacking in indicia ofreliability. These are not "trustworthy eyewitness
accounts" or firsthand alibi witnesses. Although signed and dated, none of the declarations are
sworn or notarized. The fact that petitioner's "new evidence" consists entirely of hearsay
statements may not, alone, be determinative, but it is a factor that weighs against the reliability of
the evidence.
In addition to primarily containing hearsay, the timing of these affidavits is highly
suspect. Despite petitioner arguably having had ample opportunity to investigate any
information that these witnesses had prior to trial, all four declarations were provided only after
petitioner was convicted, and the second set only after this court made a ruling unfavorable to
petitioner. Moreover, the facts in the second set of affidavits were neatly tailored to address
precisely the issues that the court had raised with respect to the first set of affidavits. The
declarants' purported reasons for failing to come forward sooner range from mildly plausible--fear of the Malik family that was only overcome after petitioner's conviction---to completely
feckless---"faith in the Legal System of a county [sic] like the USA."

12

Not only are these affidavits inconsistent with each other, they are, more importantly,
inconsistent with the sworn testimony at trial of two independent eyewitnesses who saw two
persons acting together to kill Shaukat and with the corroborating circumstantial evidence
adduced by the government. The eyewitness testimony that one individual drove the car chasing
after Shaukat while the other individual shot at Shaukat from the passenger side of the vehicle is
nearly impossible to reconcile with a version of events in which petitioner was merely a
bystander, present only to play a mediation role, without any knowledge of, or active role in, the
murder of Shaukat. The two eyewitnesses' version of events is also inconsistent with the
account that Omar purportedly gave to Nishat and Raqia, in which Qadar stood by passively
while Omar drew his weapon in panic and impulsively shot Shaukat. As this court stated in its
Rule 33 denial order, "the fact that [these statements] have no support in the record casts fatal
doubt on their reliability." United States v. Ouadar, No. 00-CR-603 (ARR), DE #88, at 10.
With respect to the second prong of the actual innocence analysis, even assuming that
petitioner's asserted evidence were new, credible, and could be admissible at trial, it is not so
compelling as to lead to the conclusion that "more likely than not, in light of the new evidence,
no reasonable juror would find him guilty beyond a reasonable doubt." House, 547 U.S. at 538.
As already explained, the additional declarations are inconsistent with the more reliable firsthand
accounts of eyewitnesses to Shaukat's murder who, unlike Qadar's family friends and relatives,
are less likely to have motives for their accounts. Moreover, those eyewitnesses' accounts are
corroborated by circumstantial evidence offered against petitioner at trial, including petitioner's
overnight retreat to Virginia with Omar, his attempts to hide his trip to the United States from his
family as well as from authorities, his flight from the United Kingdom to the Netherlands, and
his recorded conversation with his wife about money that he had received in 1996 that he did not

13

want others to know about. Although the court acknowledges the seeming unfairness of only
petitioner's incarceration while the ostensibly more culpable parties, Rahmet and Omar, still
remain free and at large, petitioner's proffered evidence is simply not so compelling as to
undermine the court's confidence in the outcome of the trial and suggest that a fundamental
miscarriage of justice will be worked if his habeas petition is dismissed as time-barred.
Because petitioner has failed to show that the actual innocence exception should apply in
his case, his petition must be treated as untimely and, accordingly, denied.
CONCLUSION
For the foregoing reasons, petitioner's motion to vacate his conviction and sentence
under 28 U.S.C. § 2255 is denied as time-barred. Furthermore, because petitioner has not made
a "substantial showing of the denial of a constitutional right" pursuant to 29 U.S.C. § 2253(c)(3),
no Certificate of Appealability will issue. Petitioner may seek such a certificate from the Second
Circuit Court of Appeals. The Clerk of Court is directed to enter judgment accordingly.

SO ORDERED.

/S/ Judge Allyne R.
Ross

Dated:

July ~~
, 2014
Brooklyn, New York

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SERVICE LIST
Manzoor Qadar

# 6047674-053
FCI Otisville
Satellite Camp
P.O. Box 1000

Otisville, NY 10963